Kerala HC refuses to quash case against Gynaecologist over Alleged Misconduct During MTP

Thiruvananthapuram: Stating that a woman of ordinary judgment would typically be able to distinguish between a sexual violation and a medically necessary touch, the Kerala High Court has refused to quash criminal proceedings against a gynaecologist at Malabar Medical College, accused of inappropriately touching a woman's breasts with sexual intent during a medical termination of pregnancy (MTP) procedure.

Dismissing the doctor's plea, Single Bench Justice G. Girish noted, "In this context, it has to be stated that normally a woman of ordinary prudence would be able to identify the violations made upon her body with lascivious motives, and other innocuous touches or advances, whether it be as part of treatment protocol or otherwise. Anyway, it is a matter to be dealt with by the Trial Court while evaluating the evidence adduced by the prosecution."

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The case revolves around an incident from September 2, 2017, when Dr**** was accused of molesting a female patient who was admitted to the hospital for a Medical Termination of Pregnancy (MTP). The prosecution alleged that the doctor, with sexual intent, pressed the woman's breasts and hugged her during the procedure. 

The victim reportedly disclosed the incident to her husband on September 7, 2017, which prompted him to file a complaint with the Atholi Police Station in Kozhikode. Subsequently, Crime No. 444/2017 was registered against the doctor, leading to the filing of a final report under Section 354 of the Indian Penal Code (IPC), which deals with outraging the modesty of a woman.

The gynaecologist, through his plea, argued that the allegations were baseless and stemmed from a misunderstanding of the MTP procedure. He contended that his actions were part of a legitimate medical examination during the MTP procedure and that the complainant had misinterpreted them.

The defense claimed that the physical contact alleged by the victim was part of the standard medical examination protocol. The counsel also pointed out that several witnesses, including duty nurses (CW3 and CW5) and house surgeons (CW4 and CW6), who were present during the procedure, did not witness any inappropriate conduct.

The counsel alleged that the statements from CW3 and CW4 indicated that the doctor did press the patient's breasts while asking whether she was still lactating. Although CW4 suggested that the act may have been medically justified due to the patient's complaints of breast pain or swelling, the victim's decision to avoid the doctor for further consultations suggested otherwise.

Meanwhile, the prosecution opposed the request to quash the plea, noting that the victim’s discomfort and subsequent refusal to consult the doctor again indicated inappropriate behavior. They argued that the truth of the allegations should be determined through a trial rather than dismissed at an early stage.

The court remarked that while the doctor’s actions might be framed as part of medical protocol, a reasonable woman could distinguish between professional conduct and actions motivated by sexual intent.

Refusing to quash the criminal charges against the doctor, the court observed, "In a proceeding under Section 482 Cr.PC, it is not possible for this Court to derive inferences on the above aspects. As matter stands now, the materials collected by the investigating agency in support of the final report filed in this case are capable of making out the offence under Section 354 IPC alleged against the petitioner. 

The reliability of the aforesaid evidence is to be tested in the trial before the learned Magistrate. The inherent powers of this Court under Section 482 Cr.PC, cannot be invoked in the facts and circumstances of the present case to terminate the prosecution proceedings at the threshold. Accordingly, I find that the prayer in this petition to quash the proceedings against the petitioner cannot be allowed."

The court concluded that the evidence gathered during the investigation, including witness statements, was sufficient to substantiate the charges under Section 354 IPC against the petitioner. Therefore, the court dismissed the petition. 

"The observations made in this order are solely for the purpose of elaborating the scope of invoking the inherent powers of this Court under Section 482 Cr.PC in the facts and circumstances of the case. The Trial Court shall decide the case untrammelled by those observations," added the court. 

To view the official order, click on the link below:

https://medicaldialogues.in/pdf_upload/kerala-high-court-orderjpg-280366.pdf

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